8/31/2021 11:59 PM Velva L. Price District Clerk Travis County D-1-GN-21-004504 CAUSE NO.D-1-GN-21-004504 ____________________ Ruben Tamez LILITH FUND FOR § In the District Court of REPRODUCTIVE EQUITY, INC., § § Plaintiff, § Travis County, Texas § v. § § Judicial District 53RD____ STATE OF TEXAS; GREGORY § ABBOTT, in His Official Capacity as § Governor of the State of Texas; § KEN PAXTON, in His Official § Capacity as Attorney General of the § State of Texas; STATE SENATORS § BRYAN HUGHES, § PAUL BETTENCOURT, § BRIAN BIRDWELL, § DAWN BUCKINGHAM, § DONNA CAMPBELL, § BRANDON CREIGHTON, § BOB HALL, KELLY HANCOCK, § JOAN HUFFMAN, § LOIS KOLKHORST, § EDDIE LUCIO, JANE NELSON, § ANGELA PAXTON, § CHARLES PERRY, § CHARLES SCHWERTNER, § DREW SPRINGER, and § LARRY TAYLOR, in Their Official § Capacities as a Texas State Senators; § STATE REPRESENTATIVES § SHELBY SLAWSON, § DUSTIN BURROWS, § BRISCOE CAIN, § STEPHANIE KLICK, and § JEFF LEACH, in Their Official § Capacities as a Representatives in the § Texas House of Representatives; § TEXAS RIGHT TO LIFE, an § organization; and JOHN SEAGO, § and JOHN DOES 1-10, § § Defendants. § § PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DECLARATORY JUDGMENT PAGE 1 AND ULTRA VIRES FINDING, AND APPLICATION FOR TEMPORARY RESTRAINING ORDER AND/OR ANTI-SUIT INJUNCTION PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DECLARATORY JUDGMENT AND ULTRA VIRES FINDING, AND APPLICATION FOR TEMPORARY RESTRAINING ORDER AND/OR ANTI-SUIT INJUNCTION Abortion funds provide resources, financial assistance, emotional support, case management, advocacy and education, in support of their missions to provide non-judgmental, compassionate care to people in need of an abortion in Texas. Integral to their purpose is to foster reproductive justice, which includes removing barriers to abortion access through community education. Plaintiff Lilith Fund for Reproductive Equity, Inc. (“Lilith Fund”) is a non-profit organization based in Dallas that provides financial, emotional, and logistical support for low- income abortion patients in Central Texas. Almost all of its clients are at a point in pregnancy when cardiac activity can be detected. Its core values are compassion, intersectionality, anti- racism, client-centeredness, inclusivity and collaboration. This case arises from Lilith Fund’s (and it’s staff and volunteers’) fundamental and constitutional rights. “[W]here there is a legal right, there is also a legal remedy . .” Marbury v. Madison, 5 U.S. 137, 163, 2 L. Ed. 60 (1803). And where the right at issue is constitutional, there is no amount of legislative trickery, obfuscation, or wordplay that can subvert it: . all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principles of our society. Id. at 177. When a legislative act and a constitutional requirement conflict, “it is emphatically the province and duty of the judicial department to say what the law is.” Id. Lilith Fund brings this lawsuit to protect itself, its staff, its volunteers, and the Texans it seeks to assist from Texas Senate PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DECLARATORY JUDGMENT PAGE 2 AND ULTRA VIRES FINDING, AND APPLICATION FOR TEMPORARY RESTRAINING ORDER AND/OR ANTI-SUIT INJUNCTION Bill 8, set to become law on September 1, 2021, from SB8’s blatant, unconstitutional, and invalid infringements on their rights. I. INTRODUCTION In May 2021, the Texas Legislature passed a sweeping new abortion prohibition, known as Senate Bill 8 or the “Texas Heartbeat Act” (“SB8”). The law does not criminalize abortion— which would be obviously unconstitutional—but instead subjects anyone who helps a pregnant person obtain an abortion in violation of SB8’s provisions to expansive strict tort civil liability. Specifically, the helper is subjected to strict liability for (1) at least $10,000 for providing assistance to a person in need of an abortion; and (2) an award of attorneys’ fees to the claimant under SB8. Additionally, upon entry of judgment against the helper, they are also subject to a mandatory injunction to prevent future violations of SB8. The law therefore improperly gives claimants under SB8 a windfall when they have suffered no injury whatsoever, based on the dubious legal premise that helping a person exercise a constitutional right can be policed by private citizens, and that helpers can be punished by their neighbors for doing nothing more than offering a ride, money, or even just offering information.1 Lilith Fund is a nonprofit organization incorporated in Texas and based in Austin. Lilith Fund’s mission is to provide financial assistance and emotional support for people needing abortions in Texas, foster a positive culture around abortion, and fight for reproductive justice across the state. Lilith Fund offsets the costs of the abortion care itself rather than the expenses involved in traveling to an abortion provider in Texas. Lilith Fund has nine staff members and 1 This case does not challenge the constitutionality of SB8’s abortion restrictions themselves— although the courts have consistently held that a ban on abortions pre-viability is wholly unconstitutional. This case is about the myriad other constitutional rights SB8’s “private enforcement” vitiates for any person subject to SB8’s provisions. PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DECLARATORY JUDGMENT PAGE 3 AND ULTRA VIRES FINDING, AND APPLICATION FOR TEMPORARY RESTRAINING ORDER AND/OR ANTI-SUIT INJUNCTION more than thirty volunteers, and primarily serves people living in central and southeast Texas. The hotline program director fields requests from Texans who are unable to afford the cost of their abortion. Callers are typically referred to us by an abortion provider in the state. Lilith Fund prioritizes callers at later gestational ages because they risk exceeding Texas’s 22-week gestational age cut-off for a legal abortion and because the cost of an abortion increases as pregnancy progresses. When Lilith Fund helps a caller with the cost of their abortion care, it sends a financial voucher to the abortion provider with whom the caller has scheduled an appointment. Lilith Fund pays the abortion provider after the abortion is completed. Last year, Lilith Fund’s hotline program director fielded requests from 4,557 callers requesting help paying for an abortion. Lilith Fund was able to fund 27% of the callers at an average amount of $348. The average gestational age at which Lilith Fund’s clients obtain an abortion is thirteen weeks, and almost all are past eight weeks. As such, almost all of Lilith Fund’s clients are at a point in pregnancy when a “fetal heartbeat,” as defined in SB8, can be detected. To help address its clients’ other immediate needs, such as transportation, lodging, and meals, Lilith Fund coordinates with organizations offering practical support for obtaining an abortion. Lilith Fund also has a practice of following up with clients soon after their scheduled abortion appointment. And Lilith Fund connects clients to story-telling opportunities aimed at combatting the stigma surrounding abortion care, and it also promotes campaigns that educate Texans about their rights and conduct trainings about abortion access within the state. Lilith Fund also openly communicates with the public regarding abortion, voicing its support for abortion rights, advocating for reproductive freedom and reproductive justice, and seeking the support of other who share the same values. Lilith Fund files this (1) Original Petition and Request for Declaratory Judgment and Ultra Vires Finding, against the State of Texas; Gregory Abbott, in his official capacity as Governor of PLAINTIFF’S ORIGINAL PETITION AND REQUEST FOR DECLARATORY JUDGMENT PAGE 4 AND ULTRA VIRES FINDING, AND APPLICATION FOR TEMPORARY RESTRAINING ORDER AND/OR ANTI-SUIT INJUNCTION the State of Texas; Ken Paxton, in his official capacity as Attorney General of the State of Texas; State Senators Bryan Hughes, Paul Bettencourt, Brian Birdwell, Dawn Buckingham, Donna Campbell, Brandon Creighton, Bob Hall, Kelly Hancock, Joan Huffman, Lois Kolkhorst, Eddie Lucio, Jane Nelson, Angela Paxton, Charles Perry, Charles Schwertner, Drew Springer, and Larry Taylor, in their official capacities as Texas State Senators; and State Representatives Shelby Slawson, Dustin Burrows, Briscoe Cain, Stephanie Klick, and Jeff Leach, in their official capacities as Representatives in the Texas House of Representatives; Texas Right to Life, an organization, and John Seago (collectively the “Declaratory Defendants”); and (2) Application for Temporary Restraining Order and/or Anti-Suit Injunction, and Defendants Texas Right to Life, Seago, and John Does 1-10 (collectively, the “Injunctive Defendants”), and respectfully shows the Court as follows: II. PARTIES 1. Plaintiff Lilith Fund is a nonprofit organization incorporated in Texas and based in Austin and may be reached at the office of the undersigned. 2. Plaintiff’s request for declaratory judgment and ultra vires finding is on behalf of Plaintiff Lilith Fund, individually, and on behalf of its staff and volunteers. As discussed in detail below, Plaintiff has suffered a direct injury because: (a) it is being required to divert organizational resources